Proffitt v. Township of Bristol

No. 83-5022 (E.D. Pa. April 27, 1984)

The court grants defendants' motion to dismiss for lack of subject matter jurisdiction, based on plaintiff's failure to allege that he gave the notice to the Environmental Protection Agency (EPA) and the defendants required by the citizen suit provisions of the Federal Water Pollution Control Act and the Resource Conservation and Recovery Act. EPA's compliance order issued to defendants shortly before plaintiff filed the amended complaint provides an additional basis for the dismissal.

Counsel for Plaintiff
Randall J. Brubaker
1521 Walnut St., Philadelphia PA 19102
(215) 567-1767

Counsel for Defendants
Richard M. Snyder
Solicitor, Bristol Twp.
120 Mill St., Bristol PA 19007
(215) 788-0471

Clyde Waite
410 Mill St., Bristol PA 19007
(215) 788-0428

[14 ELR 20701]

Weiner, J.:

Memorandum Opinion and Order

On February 7, 1984, plaintiff, Raymond Proffitt, filed an amended complaint against the defendants, Commissioners and License Inspector for Bristol Township and Commissioners of the Bristol Township Sewer Authority. The amended complaint alleges violations of the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 et seq. and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. Presently before the court is the defendant's motion to dismiss for lack of subject matter jurisdiction. For the reasons which follow, the motion is granted.

The citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, states that where violations of effluent standards or orders of the Administrator or a State are alleged, no action may be commenced:

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Admiinistrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

33 U.S.C. § 1365(b). The citizen suit provision of RCRA is nearly identical. See 42 U.S.C. § 6972(b). The purpose of the notice requirement in citizen suits is to "'encourage and provide for agency enforcement' that might obviate the need for resort to the courts." Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 [5 ELR 20046, 20696] (D.C. Cir. 1975) (footnote omitted).

In the case sub judice, plaintiff's amended complaint does not allege that notice has been given to the parties required to receive notice under the Clean Water Act or RCRA. Moreover, the amended complaint alleges that as recently as January 20, 1984, the United States Environmental Protection Agency issued an Order for Compliance to the sewer authority for failure to meet the permit discharge limitations. Since the purpose of the notice requirement is to encourage agency enforcement and obviate the need for court action, the EPA's order of January 20, 1984 provides another basis for dismissing the complaint.

Order

The motion of the defendants, Commissioners and License Inspector for Bristol Township and Commissioners of the Bristol Township Sewer Authority, to dismiss the complaint of plaintiff, Raymond Proffitt, for lack of subject matter jurisdiction is GRANTED.

IT IS SO ORDERED.